If a “non-resident” sells an immovable property in South Africa for more than R2 million then the transferring conveyancers are under a legal obligation to withhold the capital gains tax payable by the seller from the proceeds of the sale and pay it to SARS on registration of the transfer. This is in terms of s35A of the Income Tax Act No 58 of 1962.
A “non-resident” is someone who is not ordinarily resident in South Africa during the period of assessment and does not meet the requirements of the “physical presence test”. In order to meet these requirements, the person must have been physically present in SA for a period or periods exceeding:
91 days in total during the year of assessment under consideration as well as 91 days in total during each of the previous 5 years of assessment ; and
915 days in total during those 5 preceding years of assessment.
